R v Brooks

[1996] QCA 348

IN THE COURT OF APPEAL	[1996] QCA 348
SUPREME COURT OF QUEENSLAND

C.A. No. 183 of 1996.

Brisbane

[R v. Brooks]

T H E Q U E E N

v.

KARL WILLIAM BROOKS

(Applicant) Appellant

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Macrossan C.J.
Pincus J.A.

Mackenzie J.

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Judgment delivered 20/09/1996

Judgment of the Court

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
APPEAL AGAINST CONVICTION DISMISSED.

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CATCHWORDS: CRIMINAL - misappropriation and false pretences - conduct of

legal representatives - failure to call witnesses - tactical decision - sufficiency of evidence - money obtained by dishonesty in excess of $200,000.00

Counsel:	The appellant appeared on his own behalf. Ms L Clare appeared for the respondent.
Solicitors:	The appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	5 August 1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/09/1996

This is an appeal against conviction and application for leave to appeal against sentence. The appellant, who was represented at his trial but appeared for himself in this Court, has appealed against his conviction in the District Court on 2 counts, each of which related to a commercial fraud relating to a mining venture. The first was that the appellant dishonestly applied to his own use a sum of $40,000 which was in his possession or control subject to a condition that it be held on trust for Raymond Colin Anderson. The second was that by falsely pretending to one Osbourne that Mistoil Pty Ltd was the owner of three stipulated pieces of equipment, the appellant induced Osbourne to deliver to Mistoil Pty Ltd the sum of $175,000.

Having been convicted, the appellant was sentenced to 2 years and 6 months imprisonment on each count, with a recommendation that he be considered for parole after having served 12 months.

The conviction and sentence took place on 15 April 1996. The notice of appeal is dated 9 May 1996 and, as to the conviction, complains only of the judge’s "advice" to the jury. Then there is in the record what is described as an amended notice of appeal dated 12 July 1996 which asserts that Crown witnesses did not tell the truth and complains that the solicitor and barrister engaged at the trial did not call any witnesses "despite my repeated request to do so".

Since the principal complaint made by the appellant has to do with the conduct of his then legal representatives, it is convenient to deal with that subject first. The Court was told by the appellant that he had three of his major witnesses waiting outside the court room, in which the trial was being conducted, and that those witnesses kept saying to his solicitor and barrister "When are you calling us, when are we coming in?". The appellant also informed us that he always wanted witnesses called, his whole case being based on the evidence they would give. The appellant made a number of other statements along these lines, that is, statements to the effect that contrary to his clearly- expressed wishes, no witnesses were called in his defence other than the appellant himself.

At the end of the Crown case submissions were made by counsel as to another count which was then before the District Court, count 2, and the judge, accepting the submissions of counsel for the defence, ruled that it would be unsafe or unsatisfactory for a conviction to be based upon the Crown’s evidence with respect to that count. After an adjournment to enable the prosecution to consider its position, the judge was told that count 2 would not be pursued and his Honour discharged the appellant in relation to that count. Then the jury was brought in and informed of this event; the record sets out these questions and answers as having immediately followed:

" ASSOCIATE: Karl William Brooks, the case for the prosecution having been concluded, I am obliged to ask you if you intend to adduce evidence in your defence.

HIS HONOUR:	Are you going to go into the witness box and give
evidence?  ACCUSED: Yes.
HIS HONOUR:	Are you going to call any other evidence?
ACCUSED: No.
HIS HONOUR:	That’s so, Mr MacSporran?

MR MACSPORRAN: Yes. "

Mr Macsporran was counsel for the appellant at the trial. It will be noted that according to the record the appellant told the judge that no evidence other than his own was to be called. The appellant did not challenge the accuracy of the record and when this passage was drawn to his attention the appellant gave answers which, so far as we can understand them, seemed intended to convey that he misunderstood the judge’s question about calling other evidence, thinking it referred to something other than the calling of witnesses. We find it difficult to accept this, for two reasons. One is that the appellant seems to us a reasonably intelligent person and the other that the judge, before asking the appellant whether he was going to "call any other evidence", had used the word "evidence" in the preceding question as including the giving of oral evidence.

The solicitor who represented the appellant and instructed counsel at the trial, Mr Bertelsen, gave oral and written evidence to this Court, to the effect that it was decided in conference with the appellant that there was no-one other than the appellant himself who could usefully be called. The appellant cross-examined Mr Bertelsen; it emerged that the fact that conferences were held was not in dispute. The appellant put to Mr Bertelsen that he had presented him with a box full of documents and made it clear that a number of witnesses had to be called. Mr Bertelsen conceded having received a box of documents and said he had become familiar with them; he did not agree that he had disobeyed instructions to call a witness or witnesses.

Complaints of a failure on the part of defence counsel to call a witness or witnesses have not in general been sympathetically treated by appellate courts, although there is no absolute rule against granting a new trial on such a ground (re Van Beelen’s Petition (1974) 9 S.A.S.R. 163) and new trials have been granted on such a basis as is put forward by the appellant: Sayers (1922) Q.S.R. 64, re Knowles [1984] V.R. 751. But the proper approach will ordinarily by that exemplified by the reasons in Cameron (1990) 2 W.A.R. 1, where Malcolm C.J. characterised a decision made by defence counsel not to call an expert witness as a tactical one "made by competent and experienced counsel in what he believed at the time to be the best interests of his client" (7).

It cannot be enough, in order to secure a new trial on this ground, that the appellant and his former solicitor are sharply at variance in their respective recollections of what was decided about calling witnesses. One would ordinarily look for some reliable indication in the record, or in other circumstances, that a serious error might have been made by those representing an accused. Here, not only is that absent, but there is solid evidence to the contrary, in the indication admittedly given by the appellant himself to the trial judge that no evidence other than that of the appellant was to be called. Further, as will appear, the issues on which the jury ultimately had to concentrate were relatively narrow and it is not credible that, as the appellant asserts, justice could not be done unless numerous other witnesses were called. That remark applies in particular to the issues involved in count 1, alleging fraud in relation to a sum of money which was to have been held on trust; there, the only substantial question was what was agreed in conversation between the appellant and R C Anderson about the terms on which the money Anderson paid was to be held.

It therefore appears to us that the principal argument advanced by the appellant, that there was a miscarriage of justice because of the failure of his counsel to call relevant witnesses, must be rejected.

In submissions made in documents produced to the Court and in oral argument, the appellant contended in effect that he was not guilty of the offences charged and it seems fair to treat this as inviting the Court to consider whether the evidence advanced was sufficient to establish the offences of which he was convicted. As to count 1, the evidence was that the appellant advertised for workers, who were required to supply a cash "security bond" to be put into a trust. So much is clear from Exhibit 1. The appellant argued before us that Exhibit 1 did not properly set out the terms on which R C Anderson, a worker who paid money, to get a job, was invited to pay. Reference to the record shows this to be correct in the sense that Anderson said in effect that Exhibit 1 was different from the advertisements he saw but was "that sort of an ad . . . ". But the exhibit was tendered without any objection and counsel for the appellant cross- examined Anderson on it. The cross-examination was not designed to show that the money Anderson was invited to subscribe was not to be held on trust, but rather that Anderson would have construed such an advertisement, read as a whole, as not intended to convey that there was to be any trust account.

At the trial, the appellant did not, when asked about the matter, suggest that there was anything wrong with Exhibit 1 or that he had not advertised in terms mentioning that money was agreed to be held on trust. He explicitly conceded that the money was to be put into a trust, but added that it was also agreed that it could be used "for any mining purpose whatsoever". As we understand his evidence, he seemed to say that it was to be a trust only in the sense that those who contributed would get their money back in due course; it was merely an unsecured loan, it appears. When asked about Exhibit 1 the appellant admitted that he authorised it. In fact, however loosely the notion of putting money in trust is construed, it seems plain that the appellant’s dealing with Anderson’s money did not involve putting any relevant money into a trust account; it simply went into an ordinary account and no special arrangement was made to protect the fund. In argument, the appellant said the money was to go "shortly afterwards into a trust account".

The Crown case on this aspect was relatively simple. It was common ground that Anderson paid the money and that he did so on the basis that it was to be held in trust. The appellant’s case was in essence that this was qualified (or rather negated) by an agreement that the money could be used for any mining purposes whatever.

It is, to our minds, not surprising that the jury found this notion, which Anderson rejected, hard to accept. They could not have been encouraged to accept the appellant’s word by the attitude he had to another aspect of the arrangement. Although Exhibit 1 said "your bond is 100% secured with company assets", when questioned by his own counsel below about this the appellant explained in effect that what was meant was merely that if the business ran into a "serious problem" they would sell up and the money would be repaid; there was in truth no security whatever. It is our opinion that the jury was well entitled to reach a verdict on the basis that there never was, or was to be, any holding of the money in trust and that the mention of a trust was simply a means of deluding potential workers such as Anderson who might take comfort from it.

Count 3 was an allegation, proof of which depended upon showing that Osbourne was misled about the ownership of certain equipment and thereby induced to pay over money. The issue which was contested was whether or not what Osbourne was told was false and also, perhaps, whether the representation was made mistakenly rather than fraudulently. When first asked about the reason for his having signed a document, which was presented to Osbourne, in which the relevant assets were listed as belonging to Mistoil Pty Ltd, the appellant seemed to blame the solicitor who had prepared it. He told the Court that the items on the list presented to Osbourne were but "briefly scanned" and that if he had seen the three items on the list he would have "substituted them or done another - or accepted less money . . . ". Perhaps rather inconsistently with that, however, he also said that he believed at the relevant time that with the possible exception of a washing plant, (one of the three items), Mistoil Pty Ltd owned the equipment in question.

The difficulty which the appellant faced in relation to count 3 was principally that, if Mistoil Pty Ltd owned the assets the subject of the representation to Osbourne, it had bought them a few months before by a contract of sale which specifically listed the equipment included in the sale. When the appellant was shown the list of equipment sold (Exhibit 14) below, he said in effect that it was incomplete because "to list everything would be just a copious job"; it did not include the items in the list shown to Osbourne. The appellant’s case was that there was a "walk in walk out" sale to Mistoil Pty Ltd carrying with it all the equipment used in the business sold and (in effect) for that sale the list, Exhibit 14, was of no significance. It would have been open to the jury to accept this version of events, or to entertain reasonable doubt about its veracity. But it does not appear to us that, having regard to the whole circumstances disclosed by the evidence, the jury would have been impressed with the appellant’s credit. In particular, the jury might reasonably have thought that the money obtained from Anderson had been got by a particularly reprehensible piece of dishonesty.

In our opinion the appeal against conviction should be dismissed.

As to sentence, the appellant refrained from making any specific submission in support of his application, although invited by the Court to do so. The primary judge expressed the opinion that the appellant had not given honest evidence and, speaking of the offences of which the appellant was convicted, called it "calculated criminal conduct and planned dishonesty". His Honour was unable to detect any remorse, nor, we must say, has any been evident since. The judge took into account in favour of the appellant that court time and public money had been saved because of the concise way in which the case was conducted and also that the appellant, aged 60 at the date of sentence, had no previous convictions.

The total sum which, according to the jury’s verdict, was obtained by dishonesty was in excess of $200,000, so that the sentence imposed does not appear excessive, on the face of it. At the date of sentence, Osbourne had recovered most of the money due to him. Anderson, it appears, had made an agreement to accept payment by instalments but that at least the bulk of the debt remained owing. When one has regard to the circumstances of the offence involving the smaller sum, count 1, there may perhaps have been justification for a slightly heavier sentence than was imposed. It appears that Anderson, being unemployed, was tempted to think he could re-establish himself, by putting money up, but in trust. Anderson plainly trusted the appellant, but that trust was misplaced and no amount of glib explanation can dispel the impression that he was ruthlessly deceived. The honest way of soliciting the funds in question would have been to say, as was the fact, that the money was simply to be a loan, without security.

We would dismiss the appeal against conviction and refuse leave to appeal

against sentence.